26 Cal. App. 5th 871
Cal. Ct. App. 5th2018Background
- Arthur and Hildis O'Connor created a family trust (amended 1984, 1989). The 1989 amendment granted John a general testamentary power of appointment over his trust share, exercisable "by a will specifically referring to and exercising this general testamentary power of appointment."
- After Hildis died, the trust split into subtrusts; John's power remained only in Hildis's subtrust (monthly payments and a power of appointment).
- John signed a will two weeks before his 2014 death that stated: "I exercise any Power of Appointment which I may have over that portion of the trust or trusts established by my parents for my benefit or any other trusts for which I have Power of Appointment ... in favor of my brother Kevin O'Connor."
- Kevin petitioned to probate the will and to have the power recognized; Brian and Astrid contested, arguing the clause was an impermissible blanket/form clause and failed Probate Code § 632's "specific reference" requirement.
- A referee and the probate court held the will did make a sufficiently specific reference to the power; the court found John intentionally exercised the power in favor of Kevin and granted probate. Appellants appealed.
Issues
| Issue | Appellants' Argument | Kevin's Argument | Held |
|---|---|---|---|
| Whether the will language satisfied Probate Code § 632 requiring a "specific reference" to the power or to the instrument creating it | The clause is a vague "blanket" clause; it must name the specific trust amendment/instrument (e.g., the First Amendment) to satisfy § 632 | The will refers to the donors (parents) and their trust and thus sufficiently identifies the particular power; an approximate reference can suffice | The court held the will's language was sufficiently specific: referring to the parents and their trust demonstrated a conscious exercise of the particular power and complied with § 632 |
Key Cases Cited
- Sefton v. Sefton, 206 Cal.App.4th 875 (Cal. Ct. App. 2012) (describes nature of powers of appointment and statutory scheme)
- Giammarrusco v. Simon, 171 Cal.App.4th 1586 (Cal. Ct. App. 2009) (statutory construction principles; use of legislative history)
- Estate of Eddy, 134 Cal.App.3d 292 (Cal. Ct. App. 1982) (invalidated a will clause as not a specific reference to the donor's power; discussed as contrasting precedent)
- Holzbach v. United Virginia Bank, 219 S.E.2d 868 (Va. 1975) (reasoning adopted by Eddy; held generic references insufficient)
- In re Passmore, 416 A.2d 991 (Pa. 1980) (upheld language similar to a limited specific reference as a valid exercise)